R. v. MacCormack, 2013 ONCJ 499

ONTARIO COURT OF JUSTICE CITATION: R. v. MacCormack , 2013 ONCJ 499 DATE: 2013·09·05 BETWEEN: HER MAJESTY THE QUEEN — AND — ASHLEY MacCORMACK Before Justice Douglas B. Maund Heard on July 30, July 31, 2013 Reasons for Judgment released on September 5, 2013 Mr. M. Poland .......................................................................................... counsel for the Crown Mr. D.

Lent ........................................................ counsel for the accused Ashley MacCormack Maund, J.: [ 1 ] The accused, Ashley MacCormack, is charged with operation of a motor vehicle while impaired and the parallel count of having a blood alcohol content in excess of eighty milligrams percent while operating a motor vehicle contrary to Sections 253(1)(

a) and (

b) respectively. The offences are alleged to have occurred on October 28 th , 2012 at the Town of Caledon. T H E F A C T S [ 2 ] I will summarize the evidence at trial in this matter. The facts were heard in relation to both the trial and a blended Charter application in relation to

Section 8. John Boardman was called on behalf of the Crown. Mr. Boardman resides with his family at 1422 Queen Street in the Village of Alton, in Caledon. He identified a series of photographs which display his home in relation to the nearby intersection. These were marked as Exhibit ‘3’. Mr. Boardman’s residence is at the north end of a ‘T’-intersection with Agnes Street. There is a marked stopped sign for northbound traffic on Agnes Street at Queen Street. [ 3 ] Some time between 3:00 and 3:30 a.m. Mr.

Boardman testified that he heard a loud bang from his yard and believed that a motor vehicle had struck his house. He subsequently ascertained that a car had come into contact with a large pine tree in his yard to the front and east of his home. He immediately called 9-1-1 and passed the phone to his wife to speak to the emergency dispatcher. [ 4 ] When he went outside to investigate he heard the loud revving of a car engine and saw a vehicle in contact with the tree facing east/west. He said there were four occupants in the vehicle and three of them exited.

It was his immediate impression that these three persons were intoxicated. The driver remained behind the wheel and did not or could not get out of the vehicle pending the arrival of the police and emergency crews. Mr. Boardman indicated that the 9-1-1 call was made no more than twenty to thirty seconds after he heard the crash. Mr. Boardman did not have an opportunity to make observations of the driver. He did see her being removed from the vehicle by the ambulance attendants and being placed on a stretcher. He observed that she was crying and had blood on her head.

The driver was subsequently identified as the accused, Ms. MacCormack. The identity of the driver was never raised as an issue during this trial.

[ 5 ] On cross-examination Mr. Boardman indicated that he believed the time frame of his awakening to the sound was between 3:00 and 3:30 a.m. because of the digital illumination clock in his bedroom. He said it was his habit to refer to the time when he first wakes up. He agreed with Mr. Lent that the location of his home was some fifteen seconds drive to the commercial establishment in Alton known as Ray’s Bakery. [ 6 ] The primary investigating officer for the Ontario Provincial Police was Constable David Greer who was on duty on October 28 th , 2012.

At 3:20 a.m. he testified that he received a call from dispatch with respect to a motor vehicle collision at 1422 Queen Street in Alton. The dispatcher subsequently clarified that a motor vehicle had been in contact with a tree at that address. Constable Greer arrived at approximately 3:40 or 3:41 a.m. [ 7 ] On arrival the officer saw that the emergency fire response and ambulance were already on scene. He observed the vehicle in contact with the large tree on the lawn of the property. It had rotated onto the tree close to the southeast corner of the house. P.C.

Greer was assigned to interview two of the witnesses at the scene including Sean Mills who was said to have been a passenger in the motor vehicle. The emergency crew were in the process of extricating the driver from the front seat of the vehicle. The officer observed the driver being placed on a stretcher and into an ambulance at 4:12 a.m. and he went in the ambulance with her. He identified Ms. MacCormack as the driver who was being attended to in the ambulance. At that point she was immobilized. P.C.

Greer indicated that he was able to overhear the questioning by the ambulance attendants and he detected what he believed was slurred speech on the part of Ms. MacCormack. He also detected an odour of alcohol emanating from her breath. [ 8 ] In relation to grounds only and the

Section 8 Application, the officer said that he asked Ms. MacCormack how much she had had to drink that evening and her answer was “below the legal limit”. [ 9 ] It was at this point that P.C. Greer indicated that he formed grounds to believe that the accused had operated the motor vehicle while her ability to do so was impaired by alcohol and he arrested her at 4:24 a.m.

He said his grounds included the following: 1/ an unexplained accident with a single motor vehicle which apparently had preceded through a ‘T’ intersection and through a Stop sign before striking a tree; 2/ the observation of the smell of alcohol and what he believed was a slurring of her speech; [ 10 ] On the way to the hospital in the ambulance the officer read the accused her right to counsel, the caution and formal demand for an intoxilyzer sample. After arriving at the hospital he called duty counsel at 4:43 a.m. The accused had asked to speak with duty counsel upon being given her right to counsel options.

This call was returned at 5:26 a.m. and the call was complete at 5:34 a.m. [ 11 ] A technician having been requested, P.C. Munro arrived at the hospital and proceeded to set-up his intoxilyzer instrument. He was given a grounds sheet by P.C. Greer at 6:05 a.m. While this was taking place Ms. MacCormack was being treated and was the subject of medical tests at the hospital. The officer checked with the medical staff to see if the subject could be cleared to conduct a breath sample. He was told that she was medically able to do so and the neck brace was removed after she returned from x-ray tests at 6:55 a.m.

It was at this time that P.C. Munro started the intoxilyzer test procedures. A Certificate of Analysis (Exhibit “4”) which was ultimately served upon the accused indicated truncated readings of 160 milligrams percent. Finally Constable Greer confirmed that he observed Ms. MacCormack drinking no alcohol during the time that he spent with her in the ambulance and while being treated at the hospital. He acknowledged that she was not in his observation at all times, for example when the x-rays were being performed. [ 12 ] On cross-examination P.C.

Greer acknowledged that the slurring of the speech might have been affected by the impact of the collision. He believed that Ms. MacCormack understood the caution and the other formal demands that he had read to her. He was not, of course, involved in her medical treatment and could not say what fluids she may have been given during her treatment and whether these might have contained alcohol of some kind. [ 13 ] The qualified breath technician, Constable Andrew Munro also testified. P.C. Munro had received a call to attend the scene at 3:20 a.m. from the communication centre.

He identified the data described in the OPP communications print-out known as a CAD report. That report made reference to a vehicle running into a house at a time of 3:20 a.m. The officer indicated the CAD report shows his own cruiser arriving on the scene at 3:35 a.m. At that time, Constable Lemcke and other officers were there along with the fire fighters who were attempting to extricate the driver from the vehicle. He indicated that Constable Greer and the ambulance attendants arrived shortly afterward. [ 14 ] P.C.

Munro was assigned to retrieve his intoxilyzer 8000C instrument from the Caledon detachment and attend at the Headwaters Hospital. He arrived at the hospital at 5:08 a.m. He proceeded to set up the instrument on a table next to the gurney. Constable Munro received the grounds sheet from P.C. Greer at 6:05 a.m. and this was also marked as an Exhibit.

[ 15 ] In relation to Ms. MacCormack, he detected a smell of alcohol on her breath and observed that her eyes were bloodshot. He conceded that it was difficult to observe any physical movement or coordination as she was immobilized during her medical treatment and in a neck brace. [ 16 ] It was not until Ms. MacCormack’s x-rays were completed that Munro received word from her attending doctor that he was satisfied the neck brace could be removed and that the tests could commence. This was at 6:55 a.m.

The first sample was completed at 7:05 a.m. and a result of 168 milligrams of alcohol in 100 millilitres of blood. The second sample commenced at 7:24 a.m. and the result was 167 milligrams percent. The accused was then returned to the custody of P.C. Greer. The technician was satisfied that his instrument was in proper operating condition throughout. [ 17 ] On cross-examination, the breath technician confirmed that he had no personal knowledge of what medications Ms. MacCormack may have been given by medical staff.

The accused was cooperative during the testing procedure and he believed that she had a full understanding of his questions and was responsive throughout. In his alcohol influence report he confirmed that while he observed blood shot eyes on Ms. MacCormack, she was wearing contact lenses as a potential explanation. He did not note any unusual actions on her part. And he described her speech as ‘good’ during his dealings with her.

As to his conclusion as to the effects of alcohol, he described these in his report as “slight”. [ 18 ] One of the passengers in the MacCormack vehicle, Sean Mills, testified as part of the case for the Crown. Mr. Mills worked at this time for Ray’s Bakery in Alton. He was acquainted with the accused, having previously worked with her when she was a server at a local golf course. [ 19 ] Mr. Mills indicated on the evening of October 27 th into the morning of the 28 th he had attended a Halloween party at Ray’s Bakery in Alton from about 11:00 p.m. Before that in the evening he had been working at the restaurant.

Mr. Mills acknowledged that he started drinking at 11:00 p.m. and may have consumed five or six drinks of beer before the last call some time after 1:13 a.m. Despite this estimate of consumption Mr. Mills described his memory of these events as “pretty fuzzy” and it was clear that he was substantially intoxicated by alcohol that morning. At the end of the party at Ray’s, his intention was to proceed to another party. The group of young people left with Ms. MacCormack driving and proceeded first to Mr. Mills’ residence on Agnes Street to pick up another bottle for the party.

After retrieving the wine he got back into the passenger seat of the vehicle and the vehicle proceeded down Agnes Street where it eventually came into the collision with the tree. Mr. Mills confirmed they never made it to the other party after leaving Ray’s. He said the collision took place some fifteen to twenty minutes after leaving the party at the restaurant. [ 20 ] Mr. Mills indicated that he saw Ms. MacCormack at the party but he did not see her drinking. He confirmed that before getting into the vehicle, he believed she was fine to drive.

However, he acknowledged that he was really not spending any time with Ms. MacCormack during the evening prior to getting into the vehicle. He had very little recollection how the accident happened and he estimates Ms. MacCormack was driving perhaps forty to forty-five miles per hour. However, Mr. Mills acknowledged telling the police in his statement that her speed was sixty miles per hour. He also said that he was in the car for no more than fifteen minutes. [ 21 ] During cross-examination Mr. Mills acknowledged that he was impaired when he left Ray’s that evening but he was unsure of the time.

He did not think that Ms. MacCormack might have been impaired and saw no signs of that. He had no memory of attending another party after leaving Ray’s Bakery. And further, Mr. Mills denied telling the investigating officer on the day of the trial that in fact, he had attended another party before going to his home in the MacCormack vehicle. He was adamant in his response that he did not attend another party despite an inconsistency in the time frame from leaving Ray’s Bakery to the time of the accident. He clarified that the measure of speed that he said or intended to say with respect to the speed of Ms.

MacCormack was in fact in kilometres per hour not miles per hour . [ 22 ] Another passenger in the MacCormack vehicle was called by the Defence. That is Chris Petersons who was also familiar with the accused and was at the gathering at Ray’s Bakery on the evening in question. Mr. Petersons also acknowledged that he was drinking significantly on that evening and this affected his memory. He remembers leaving the party at Ray’s to attend another party along with Sean Mills and some others. After attending the second party, his group with Ashley MacCormack driving drove to Mr.

Mills’ home to obtain some more alcohol. Mr. Peterson showed what he believed to be the location of the second party on GoogleMap which was filed as Exhibit “7” and said that the group had walked to that party from Ray’s Bakery. When asked whether he was concerned about Ms. MacCormack’s ability to drive, his answer was “she did not seem impaired, I guess”. [ 23 ] On cross-examination, Mr. Peterson indicated that he had “quite a few drinks” and was therefore “somewhat impaired”. This would have had an effect on his ability to determine the extent what others may have been drinking that evening.

He confirmed that no one was drinking in the vehicle as it proceeded toward the accident. Specifically, the Defendant was not drinking in the car.

[ 24 ] It is fair to say that Mr. Petersons as well as Mr. Mills were confusing witnesses who gave confusing evidence. Both of the recollections of these two witnesses were significantly impacted by their consumption of alcohol. [ 25 ] Finally, the Defence called Bill Bernath, who was a paramedic who attended at the scene. Mr. Bernath completed the ambulance call report that evening. He testified that Ms. MacCormack had a laceration to the bridge of her nose and a head injury which caused some bleeding but not extensive bleeding. Mr. Bernath completed a head to toe assessment of the accused.

He has no recollection of P.C. Greer accompanying them to the hospital with the patient. [ 26 ] Mr. Bernath would not say that the Defendant’s speech was slurred but acknowledged that she had just struck her head against the windshield as a result of the accident. The witness indicated on cross-examination that he had never administered alcohol to a patient in all of his twenty-four years of experience as a paramedic. Nor had he ever heard of alcohol being administered as part of medical treatment. He did not observe any consumption of alcohol by the patient during his dealings with her. Mr.

Bernath also indicated that he had a significant cold at the time and this may have affected his ability to smell potential alcohol on the breath of his patient. [ 27 ] Finally, as part of the agreed facts by Crown and Defence, the following facts were agreed: 1/ The distance from Ray’s Bakery to the scene of the accident was 160 meters; 2/ The distance from the scene of the collision to Sean Mills’ home on Agnes Street was 300 meters; 3/ If Constable Greer had been recalled he would have testified that he conducted an interview with Sean Mills during the day of the trial in which Mr.

Mills indicated the following sequence of events: a. He had been with the group at Ray’s Bakery drinking; b. He then went to another party directly from Ray’s; c. The group then drove to his home at 21 Agnes Street in Alton where he retrieved a bottle of wine; d. They were on their way to another party travelling northbound on Agnes Street when they came into collision with the tree; e. He did not think that the driver was impaired. [ 28 ] The Crown also filed as Exhibit “1” the Report of a Centre of Forensic Sciences toxicologist, Inger Bugyra dated November 20, 2012.

Based on the stated assumptions in this report, and the actual intoxilyzer readings at 7:02 and 7:24 a.m. respectively, Ms. Bugyra concluded that the accused would have had a projected blood alcohol concentration at or between approximately 3:10 a.m. and 3:20 a.m. of 165 to 215 milligrams of alcohol in 100 millilitres of blood.

The factors relied on were: 1) A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour (mg/100 mL/hr). 2) Allowance for a plateau of up to two hours. 3) No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident. 4) No consumption of alcoholic beverages after the incident and before the breath test(s). [ 29 ] The report concluded that a person within this projected BAC range would be impaired in their ability to operate a motor vehicle at this relevant time. A N A L Y S I S A.

The Charter Application [ 30 ] The Defence makes an application for a remedy under the Charter and submits that the police lacked sufficient grounds to arrest Ms. MacCormack for impaired operation and to demand breath samples. And that accordingly, there has been a

Section 8 violation and that such compelled samples were unlawful and ought to be excluded.

[ 31 ] The evidence available to P.C. Greer in arresting the applicant and forming his grounds was the following:

(1) That an unexplained accident occurred in which a vehicle operated by the accused proceeded at some speed through a marked stop sign and came to be wedged against a tree. Damage to the car was extensive;

(2) Ms. MacCormack had to be extricated from the driver’s seat and was immobilized by paramedics pending spinal investigation. There was therefore very limited observation of her motor skills or function;

(3) In the ambulance (and despite the paramedic’s evidence, I accept that Greer was in the ambulance), the OIC smelled alcohol and believed that her speech was slurred;

(4) When P.C. Greer asks how much the applicant has had to drink, her answer was “below the legal limit”; [ 32 ] The Defence submits that all of this evidence, viewed objectively, supports no more than a mere suspicion of impairment. In support, Mr. Lent relies upon the evidence of the paramedic who noted no apparent signs of impairment and believed that the speech of his patient was normal. [ 33 ] In my view, the officer was entitled to consider all of the evidence available to him in arriving at his grounds.

He was entitled to consider the circumstances of a serious and unexplained accident in a quiet residential neighbourhood. There were other potential explanations for the collision certainly, including mechanical failure. But, viewed objectively, the circumstances of the accident gave rise to an inference of very erratic driving, potentially from impairment by the driver.

That evidence together with the detection of alcohol on the breath and perceived slurring afforded sufficient grounds for the arrest. [ 34 ] The fact that other persons might have come to a different conclusion or that other explanations subsequently might be available does not detract from or diminish the validity of objective grounds by the officer at the scene. Even if subsequently proven to be wrong, P.C. Greer’s inferences were rational and supported by the evidence before him. [ 35 ] In my view, there were sufficient grounds for the arrest and demand on these facts. This Application is dismissed. B.

The Over 80 Charge [ 36 ] The ability of the Crown to rely on the report of the toxicologist is critical to proof of the over 80 charge. One of the elements which must be established is the time of the alleged offence. The report sets a time frame of between approximately 3:10 a.m. and 3:20 a.m. The use of the word “approximately” suggests some flexibility into the time frame for the time of driving. [ 37 ] Mr. Boardman put the time of the crash as between 3:00 and 3:30 a.m., based upon his bedroom clock. Both officers Greer and Munro indicated that they received the call from their dispatch at 3:20 a.m.

The OPP CAD Report filed as Exhibit “2” confirms that the time of the accident report was logged at 3:20 a.m. and forty seconds. And the homeowner was clear in his evidence that he called 9- 1-1 within seconds of awakening and hearing the crash. [ 38 ] The Defence argues that, absent direct evidence from the 9-1-1 system or operator, the Court cannot rely on the CAD O.P.P. report in assessing time. I respectfully disagree. [ 39 ] While I do not have direct evidence of the precise time of the call to the 9-1-1 operator, I find that it was made within seconds of the collision.

O.P.P dispatch had received this information and sent the call out at 3:20 a.m. This has been corroborated. I find it a logical inference that the 9-1-1 accident call was transmitted with immediacy to the O.P.P. I find that it is safe to infer that the 9-1-1 emergency call was transmitted to the O.P.P. within moments or, in any event, certainly within the ten minute time frame between 3:10 and 3:20 a.m. I find that any other inference is contrary to normal human experience of the operation of these emergency services.

[40] In relation to the four essential factors or basis on which the toxicologist’s report relies, no issue is taken with respect to thefirst two. That is, the accepted expert’s range of BAC elimination and the allowance for a plateau. What is very much in contention arethe third and fourth factors. That is, the assumption that there was no consumption of large quantities of alcoholic beverages (or bolusdrinking) within fifteen minutes prior to the accident.

And that there was no consumption of alcoholic beverages after the incident andbefore the breath tests. [41] Dealing with the last assumption, in relation to potential post driving consumption, there is no evidence that Ms.MacCormack had or was drinking alcohol while being extricated from her vehicle or in the ambulance or while under observation at thehospital. The Defence points out, however, that the police did not have the accused under continuous observation at the hospital, such asduring her x-ray tests.

And that while it was unlikely she had access to her own alcohol during treatment, there is no evidence aboutwhat medication she might have been given. It is argued that such medications might have had some alcohol component which mightaffect her intoxilyzer readings. [42] There is no medical evidence of what drugs, or if any drugs were administered to the Defendant at the hospital. She wasbeing assessed during this time and was ultimately cleared to perform the breath tests. The paramedic indicated that he did notadminister anything with alcohol in it to Ms. MacCormack.

Indeed, he had never heard of alcohol being administered to the patient insuch situations in his twenty-four years of experience. [43] I find that it is purely speculative to suggest that alcohol may have been administered to the accused as part of her medicaltreatment. Her treatment was investigative for potential trauma as I understand it.

In my view, it is not necessary for the Crown tonegative this proposition which I find respectfully, is unsupported on the facts. [44] Counsel agree, I think, that the third assumption of no bolus drinking by the accused in the report is at the heart of the over80 arguments. [45] This issue has been the subject of comment in a number of appeal decisions.

The seminal authority is R v Paszczenko and Rv Lima 2010 ONCA 615 , [2010] OJ No. 3974, a decision of the Ontario Court of Appeal. [46] In Paszczenko andLima the Court characterizes whether the trial Court can or should rely upon a common sense assumptionthat no bolus drinking has occurred at paragraph 29. “At one level, the answer is straightforward: the Crown need do very little. The toxicologist’s report is premised – amongst otherthings- on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trierof fact conclude there was bolus drinking?

This Court has answered the question posed by concluding that triers of fact may resort to acommon sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, orwhile, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169.

As noted above, bolus drinking has been said to be a “relativelyrare” phenomenon: Phillips, at pp. 158-162. “No bolus drinking” is therefore largely a matter of common knowledge and commonsense about how people behave.” [47] The Court of Appeal indicates at paragraph 32, that there is at least a “practical evidentiary burden” upon an accused to“point to something in the evidence .... that at least puts the possibility that the accused had engaged in bolus drinking in play.” [48] The Defence submits that the possibility of bolus drinking arises from the fact of the close proximity of the party at Ray’sBakery to the accident scene and from evidence that some alcohol was consumed by the Defendant during the evening.

And also thatMs. MacCormack may have consumed alcohol at the other party she attended, on the evidence of Mr. Petersons, at least. [49] I agree with the argument of the Crown that the “possibility” on the evidence, as framed by the Ontario Court of Appeal isnot merely of alcohol consumption generally. Rather it is the possibility of bolus drinking, the consumption of large quantities of alcoholwithin fifteen minutes of the accident. There is no evidence to raise the possibility of bolus drinking on the facts before this Court.

None of the witnesses were clear about what, if anything, they saw the accused drink at the party or parties. While I hesitate to rely onall of the evidence of Messrs. Mills and Petersons as they were impaired, they did confirm that Ms. MacCormack did not drink alcoholinside the car. Mr. Mills put the time they were driving in the car as fifteen to twenty minutes, which seems unlikely given thedistances. But both witnesses saw nothing unusual about the Defendant in relation to alcohol which would alert them not to travel withher.

I would have to infer that excessive and sudden drinking was not observed by either of them nor any signs of such intake.

[ 50 ] Mr. Lent placed considerable emphasis in his argument on the fact that what is referred to in the report’s third assumption as the “consumption of large quantities of alcoholic beverages” was imprecise. As the Court of Appeal noted in paragraph 57 of Paszczenko , there may well be cases where such precision is essential on specific facts.

However, in a case such as the one before this court where there is no evidence to suggest prior rapid alcohol consumption, my conclusion is as stated by the Ontario Court of Appeal in paragraph 58 of Paszczenko and Lima . “ The lack of precision is therefore of little moment in these proceedings.” [ 51 ] In the result, I find that the essential assumptions in the toxicologist’s report have been established. The Crown may rely on the report to project the BAC of the accused at the time of driving.

As all of the elements required by the Criminal Code to be proven in relation to the intoxilyzer tests have also been established, this offence has been proven beyond a reasonable doubt. There will be a finding of guilt. C. Impaired Charge [ 52 ] The Crown relies upon the conclusion in the experts report on the charge of impaired driving. There is other evidence which might be said to be equivocal in relation to potential impairment. The police evidence about slurred speech was in contradiction. Also an experienced paramedic did not note obvious signs of impairment and did not smell alcohol on his patient.

However, as the Crown notes, Mr. Bernath had a bad cold and was concentrating on assessing Ms. MacCormack for injuries. Overall, the physical evidence suggesting potential impairment is not strong. [ 53 ] However, I find that the evidence of the unexplained serious accident is capable of supporting this inference. That, together with the expert opinion of impairment on the basis of the projected BAC establishes the offence of impaired operation beyond a reasonable doubt. [ 54 ] This is not a case, such as that before my colleague in R v Robert Pouw (Ont. C.J.

Feb.10, 2006) where the only evidence in support of impairment was an expert’s report. In any event, I respectfully disagree with the proposition that a charge of impaired may not be established on the basis of an expert’s report alone. [ 55 ] While I make a finding of guilt on the impaired charge, I impose a judicial stay in accordance with R. v. Kienapple . Released: September 5, 2013 _______________________________________ Justice Douglas B. Maund